State of Tennessee v. Brandon Robert Vandenburg

A Davidson County jury convicted Brandon Robert Vandenburg, Defendant, of five counts of aggravated rape, two counts of aggravated sexual battery, and one count of unlawful photography. On appeal, Defendant argues the following: (1) the trial court’s denial of his motion to dismiss the superseding indictment violated his right to due process and protection from double jeopardy and violated Tennessee Rule of Criminal Procedure 8; (2) prosecution on the superseding indictment created a realistic likelihood of vindictive prosecution; (3) the trial court erred in excluding the testimony of Dr. J. Sidney Alexander; (4) the trial court erred by denying Defendant’s request to question potential jurors about recent rape cases in national news and by failing to timely admonish prospective jurors; (5) the trial court erred in denying Defendant’s motion to suppress the June 27, 2013 interrogation and evidence obtained based on that interrogation; (6) the trial court erred in excluding Defendant’s voicemail on Joseph Quinzio’s cell phone; (7) the trial court erred by instructing the jury on the requisite culpability for criminal responsibility and on “presence and companionship” as it relates to criminal responsibility; (8) the State committed prosecutorial misconduct during closing arguments; (9) the evidence was insufficient for a rational juror to have found Defendant guilty beyond a reasonable doubt; (10) Tennessee Code Annotated section 39-13-605 is void for vagueness; (11) the trial court erred in ordering Defendant to serve an excessive sentence; (12) the trial court erred in denying Defendant’s motion to recuse; (13) the trial court erred by excluding evidence of the co-defendants’ prior bad acts; (14) the trial court erred by denying Defendant’s Tennessee Rule of Evidence 412 motion; and (15) the cumulative errors in Defendant’s trial warrant a new trial. After a thorough review of the facts and applicable case law, we affirm the trial court’s judgments in counts one through four and six through eight. Although not raised by either party, we determine that Defendant’s conviction of aggravated rape in count five must be vacated. We modify the conviction in count five to attempted aggravated rape and remand to the trial court for sentencing in count five.